This document includes House Floor Amendments incorporated into the bill on Mon, Mar 9, 2015 at 4:31 PM by jeyring.
This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Thu, Mar 12, 2015 at 4:00 PM by lpoole.
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7 LONG TITLE
8 General Description:
9 This bill modifies the Utah Procurement Code.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies provisions relating to the procurement of the services of an architect or
13 engineer;
14 ▸ authorizes the head of a procurement unit with independent procurement authority
15 to address a procurement or contract that is out of compliance;
16 ▸ modifies a provision relating to exemptions from the procurement code;
17 ▸ modifies a provision relating to thresholds for small purchases;
18 ▸ modifies a provision relating to a multiple stage bidding process;
19 ▸ enacts a provision relating to changes in contract price;
20 ▸ modifies procurement appeal provisions relating to local government procurement
21 units; and
22 ▸ modifies provisions relating to the forfeiture of a security deposit or bond.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:
28 AMENDS:
29 17B-1-108, as last amended by Laws of Utah 2012, Chapter 347
30 63G-6a-103, as last amended by Laws of Utah 2014, Chapter 196
31 63G-6a-104, as last amended by Laws of Utah 2014, Chapters 63 and 196
32 63G-6a-105, as last amended by Laws of Utah 2013, Chapter 445
33 63G-6a-106, as last amended by Laws of Utah 2014, Chapter 196
34 63G-6a-107, as last amended by Laws of Utah 2014, Chapters 180, 196, and 313
35 63G-6a-204, as last amended by Laws of Utah 2014, Chapter 196
36 63G-6a-303, as last amended by Laws of Utah 2014, Chapter 196
37 63G-6a-402, as last amended by Laws of Utah 2014, Chapters 179 and 196
38 63G-6a-408, as last amended by Laws of Utah 2014, Chapter 196
39 63G-6a-609, as last amended by Laws of Utah 2014, Chapter 196
40 63G-6a-707, as last amended by Laws of Utah 2014, Chapter 196
41 63G-6a-1203, as last amended by Laws of Utah 2013, Chapter 445
42 63G-6a-1501, as enacted by Laws of Utah 2012, Chapter 347
43 63G-6a-1502, as last amended by Laws of Utah 2014, Chapter 196
44 63G-6a-1503, as last amended by Laws of Utah 2014, Chapter 196
45 63G-6a-1504, as renumbered and amended by Laws of Utah 2012, Chapter 347
46 63G-6a-1505, as last amended by Laws of Utah 2014, Chapter 196
47 63G-6a-1506, as last amended by Laws of Utah 2013, Chapter 445
48 63G-6a-1603, as last amended by Laws of Utah 2014, Chapter 196
49 63G-6a-1702, as last amended by Laws of Utah 2014, Chapter 196
50 63G-6a-1703, as last amended by Laws of Utah 2014, Chapter 196
51 63G-6a-1802, as last amended by Laws of Utah 2014, Chapter 196
52 63G-6a-1903, as last amended by Laws of Utah 2014, Chapter 196
53 63G-6a-1904, as last amended by Laws of Utah 2014, Chapter 196
54 ENACTS:
55 63G-6a-1206.5, Utah Code Annotated 1953
56 63G-6a-1502.5, Utah Code Annotated 1953
57 63G-6a-1503.5, Utah Code Annotated 1953
58
59 Be it enacted by the Legislature of the state of Utah:
60 Section 1. Section 17B-1-108 is amended to read:
61 17B-1-108. Restrictions on local district procurement of design professional
62 services.
63 (1) As used in this section[
64 term is defined in Section 63G-6a-103.
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87 (2) The procurement of design professional services is governed by Title 63G, Chapter
88 6a, Part 15, Design Professional Services.
89 Section 2. Section 63G-6a-103 is amended to read:
90 63G-6a-103. Definitions.
91 As used in this chapter:
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99 that directs the contractor to suspend work or make changes, as authorized by contract, without
100 the consent of the contractor.
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102 rate of delivery, period of performance, price, quantity, or other provisions of a contract, upon
103 mutual agreement of the parties to the contract.
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105 under Subsection 63G-6a-302(1).
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107 aspects of a procurement:
108 (a) except:
109 (i) reviewing a solicitation to verify that it is in proper form; and
110 (ii) causing the publication of a notice of a solicitation; and
111 (b) including:
112 (i) preparing any solicitation document;
113 (ii) appointing an evaluation committee;
114 (iii) conducting the evaluation process, except as provided in Subsection
115 63G-6a-707(5)(b) relating to scores calculated for costs of proposals;
116 (iv) selecting and recommending the person to be awarded a contract;
117 (v) negotiating the terms and conditions of a contract, subject to the issuing
118 procurement unit's approval; and
119 (vi) administering a contract.
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121 improving, or repairing a public building or public work.
122 (b) "Construction" does not include the routine operation, routine repair, or routine
123 maintenance of an existing structure, building, or real property.
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125 into a contract for the management of a construction project when the contract allows the
126 contractor to subcontract for additional labor and materials that are not included in the
127 contractor's cost proposal submitted at the time of the procurement of the contractor's services.
128 (b) "Construction manager/general contractor" does not include a contractor whose
129 only subcontract work not included in the contractor's cost proposal submitted as part of the
130 procurement of the contractor's services is to meet subcontracted portions of change orders
131 approved within the scope of the project.
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133 procurement item.
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135 unit.
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137 of:
138 (a) more than one procurement unit; or
139 (b) a procurement unit and a cooperative purchasing organization.
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141 contractor is paid a percentage over and above the contractor's actual expenses or costs.
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143 is reimbursed for costs which are allowed and allocated in accordance with the contract terms
144 and the provisions of this chapter, and a fee, if any.
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147 the supply of a specified amount of goods over a specified period, with deliveries scheduled
148 according to a specified schedule.
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150 professional services and construction by the use of a single contract with the design-build
151 provider.
152 (16) "Design professional" means:
153 (a) an individual licensed as an architect under Title 58, Chapter 3a, Architects
154 Licensing Act; or
155 (b) an individual licensed as a professional engineer or professional land surveyor
156 under Title 58, Chapter 22, Professional Engineers and Professional Land Surveyors Licensing
157 Act.
158 (17) "Design professional services" means:
159 (a) professional services within the scope of the practice of architecture as defined in
160 Section 58-3a-102;
161 (b) professional engineering as defined in Section 58-22-102; or
162 (c) master planning and programming services.
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165 list, schedule, or other form that:
166 (a) is regularly maintained by a manufacturer or contractor;
167 (b) is either published or otherwise available for inspection by customers; and
168 (c) states prices at which sales are currently or were last made to a significant number
169 of any category of buyers or buyers constituting the general buying public for the supplies or
170 services involved.
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172 procurement item obtained under the contract, that is not subject to adjustment except to the
173 extent that:
174 (a) the contract provides, under circumstances specified in the contract, for an
175 adjustment in price that is not based on cost to the contractor; or
176 (b) an adjustment is required by law.
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178 that provides for an upward or downward revision of price, precisely described in the contract,
179 that:
180 (a) is based on the consumer price index or another commercially acceptable index,
181 source, or formula; and
182 (b) is not based on a percentage of the cost to the contractor.
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184 private source, financial or other assistance to a person to support a program authorized by law.
185 (b) "Grant" does not include:
186 (i) an award whose primary purpose is to procure an end product or procurement item;
187 or
188 (ii) a contract that is awarded as a result of a procurement or a procurement process.
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190 (a) as it relates to a legislative procurement unit, any person designated by rule made
191 by the applicable rulemaking authority;
192 (b) as it relates to an executive branch procurement unit:
193 (i) the director of a division; or
194 (ii) any other person designated by the board, by rule;
195 (c) as it relates to a judicial procurement unit:
196 (i) the Judicial Council; or
197 (ii) any other person designated by the Judicial Council, by rule;
198 (d) as it relates to a local government procurement unit:
199 (i) the legislative body of the local government procurement unit; or
200 (ii) any other person designated by the local government procurement unit;
201 (e) as it relates to a local district, the board of trustees of the local district or a designee
202 of the board of trustees;
203 (f) as it relates to a special service district, the governing body of the special service
204 district or a designee of the governing body;
205 (g) as it relates to a local building authority, the board of directors of the local building
206 authority or a designee of the board of directors;
207 (h) as it relates to a conservation district, the board of supervisors of the conservation
208 district or a designee of the board of supervisors;
209 (i) as it relates to a public corporation, the board of directors of the public corporation
210 or a designee of the board of directors;
211 (j) as it relates to a school district or any school or entity within a school district, the
212 board of the school district, or the board's designee;
213 (k) as it relates to a charter school, the individual or body with executive authority over
214 the charter school, or the individual's or body's designee;
215 (l) as it relates to an institution of higher education of the state, the president of the
216 institution of higher education, or the president's designee; or
217 (m) as it relates to a public transit district, the board of trustees or a designee of the
218 board of trustees.
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220 (a) is for an indefinite amount of procurement items to be supplied as ordered by a
221 procurement unit; and
222 (b) (i) does not require a minimum purchase amount; or
223 (ii) provides a maximum purchase limit.
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225 procurement unit under Subsection 63G-6a-106(4)(a).
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227 attached or incorporated by reference, used for soliciting bids to provide a procurement item to
228 a procurement unit.
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230 (a) reviews a solicitation to verify that it is in proper form;
231 (b) causes the notice of a solicitation to be published; and
232 (c) negotiates the terms and conditions of a contract.
233 [
234 (a) the supplies and materials are not provided by, or through, the contractor; and
235 (b) the contractor is paid a fixed rate that includes the cost of labor, overhead, and
236 profit for a specified number of labor hours or days.
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238 quantity of a procurement item to more than one bidder or offeror.
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240 period, including a contract that permits renewal of the contract, without competition, beyond
241 the first year of the contract.
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245 preference under the requirements of this chapter.
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247 leasing with an option to purchase, or otherwise acquiring a procurement item.
248 (b) "Procure" or "procurement" includes all functions that pertain to the obtaining of a
249 procurement item, including:
250 (i) the description of requirements;
251 (ii) the selection process;
252 (iii) solicitation of sources;
253 (iv) the preparation for soliciting a procurement item; and
254 (v) the award of a contract.
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256 [
257 (a) as it relates to a procurement unit with independent procurement authority:
258 (i) the head of the procurement unit;
259 (ii) a designee of the head of the procurement unit; or
260 (iii) a person designated by rule made by the applicable rulemaking authority; or
261 (b) as it relates to the division or a procurement unit without independent procurement
262 authority, the chief procurement officer.
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264 specialized knowledge and discretion in the performance of the service, including:
265 (a) legal services;
266 (b) consultation services;
267 (c) architectural services;
268 (d) engineering;
269 (e) design;
270 (f) underwriting;
271 (g) bond counsel;
272 (h) financial advice;
273 (i) construction management;
274 (j) medical services;
275 (k) psychiatric services; or
276 (l) counseling services.
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278 (a) as it relates to the division or a procurement unit with independent procurement
279 authority:
280 (i) the head of the procurement unit;
281 (ii) a designee of the head of the procurement unit; or
282 (iii) a person designated by rule made by the applicable rulemaking authority; or
283 (b) as it relates to a procurement unit without independent procurement authority, the
284 chief procurement officer or the chief procurement officer's designee.
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286 procurement unit requests information relating to a procurement item.
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288 are attached or incorporated by reference, used for soliciting proposals to provide a
289 procurement item to a procurement unit.
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291 solicit information about the qualifications of the person interested in responding to a potential
292 procurement, including documents attached or incorporated by reference.
293 [
294 (a) where a contractor agrees to provide a procurement unit's entire requirements for
295 certain procurement items at prices specified in the contract during the contract period; and
296 (b) that:
297 (i) does not require a minimum purchase amount; or
298 (ii) provides a maximum purchase limit.
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300 (a) meeting all the requirements of a solicitation; and
301 (b) fully performing all the requirements of the contract resulting from the solicitation,
302 including being financially solvent with sufficient financial resources to perform the contract.
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304 bids or request for proposals.
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306 proposals.
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308 not involving the delivery of a specific end product other than a report that is incidental to the
309 required performance.
310 (b) "Services" does not include an employment agreement or a collective bargaining
311 agreement.
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313 procurement.
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315 pursuant to a determination under Subsection 63G-6a-802(2)(a) that there is only one source
316 for the procurement item.
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318 sole source procurement, request for statement of qualifications, request for information, or any
319 document used to obtain bids, proposals, pricing, qualifications, or information for the purpose
320 of entering into a procurement contract.
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322 characteristics, or nature of a procurement item included in an invitation for bids or a request
323 for proposals, or otherwise specified or agreed to by a procurement unit, including a description
324 of:
325 (a) a requirement for inspecting or testing a procurement item; or
326 (b) preparing a procurement item for delivery.
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328 obtaining a procurement item:
329 (a) bidding, as described in Part 6, Bidding;
330 (b) request for proposals, as described in Part 7, Request for Proposals; or
331 (c) small purchases, in accordance with the requirements established under Section
332 63G-6a-408.
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334 and in behalf of all public entities.
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336 procurement unit in response to a request for statement of qualifications.
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338 another subcontractor to provide services or labor for design or construction.
339 (b) "Subcontractor" includes a trade contractor or specialty contractor.
340 (c) "Subcontractor" does not include a supplier who provides only materials,
341 equipment, or supplies to a contractor or subcontractor.
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344 identical in price.
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346 paid:
347 (a) the actual cost of direct labor at specified hourly rates;
348 (b) the actual cost of materials and equipment usage; and
349 (c) an additional amount, expressly described in the contract, to cover overhead and
350 profit, that is not based on a percentage of the cost to the contractor.
351 Section 3. Section 63G-6a-104 is amended to read:
352 63G-6a-104. Definitions of government entities.
353 As used in this chapter:
354 (1) "Applicable rulemaking authority" means:
355 (a) as it relates to a legislative procurement unit, the Legislative Management
356 Committee, which shall adopt a policy establishing requirements applicable to a legislative
357 procurement unit;
358 (b) as it relates to a judicial procurement unit, the Judicial Council;
359 (c) as it relates to an executive branch procurement unit, except to the extent provided
360 in Subsections (1)(d) through (g), the board;
361 (d) as it relates to the State Building Board, created in Section 63A-5-101, the State
362 Building Board, but only to the extent that the rules relate to procurement authority expressly
363 granted to the State Building Board by statute;
364 (e) as it relates to the Division of Facilities Construction and Management, created in
365 Section 63A-5-201, the director of the Division of Facilities Construction and Management,
366 but only to the extent that the rules relate to procurement authority expressly granted to the
367 Division of Facilities Construction and Management by statute;
368 (f) as it relates to the Office of the Attorney General, the attorney general, but only to
369 the extent that the rules relate to procurement authority expressly granted to the attorney
370 general by statute;
371 (g) as it relates to the Department of Transportation, created in Section 72-1-201, the
372 executive director of the Department of Transportation, but only to the extent that the rules
373 relate to procurement authority expressly granted to the Department of Transportation by
374 statute;
375 (h) as it relates to a local government procurement unit, the legislative body of the local
376 government procurement unit, not as a delegation of authority from the Legislature, but under
377 the local government procurement unit's own legislative authority;
378 (i) as it relates to a school district or a public school, the Utah State Procurement Policy
379 Board, except to the extent that a school district makes its own nonadministrative rules, with
380 respect to a particular subject, that do not conflict with the provisions of this chapter;
381 (j) as it relates to a state institution of higher education, the State Board of Regents;
382 (k) as it relates to a public transit district, the chief executive of the public transit
383 district;
384 (l) as it relates to a local district or a special service district:
385 (i) before January 1, 2015, the board of trustees of the local district or the governing
386 body of the special service district; or
387 (ii) on or after January 1, 2015, the board, except to the extent that the board of trustees
388 of the local district or the governing body of the special service district makes its own rules:
389 (A) with respect to a subject addressed by board rules; or
390 (B) that are in addition to board rules; or
391 (m) as it relates to a procurement unit, other than a procurement unit described in
392 Subsections (1)(a) through (l), the board.
393 (2) "Board" means the Utah State Procurement Policy Board, created in Section
394 63G-6a-202.
395 (3) "Building board" means the State Building Board created in Section 63A-5-101.
396 (4) "Conservation district" is as defined in Section 17D-3-102.
397 (5) "Cooperative purchasing organization" means an organization, association, or
398 alliance of purchasers established to combine purchasing power in order to obtain the best
399 value for the purchasers by engaging in procurements in accordance with Section 63G-6a-2105.
400 (6) "Division" means the Division of Purchasing and General Services.
401 (7) "Educational procurement unit" means:
402 (a) a school district;
403 (b) a public school, including a local school board or a charter school;
404 (c) Utah Schools for the Deaf and Blind;
405 (d) the Utah Education and Telehealth Network; or
406 (e) an institution of higher education of the state.
407 (8) "Executive branch procurement unit" means each department, division, office,
408 bureau, agency, or other organization within the state executive branch, including the division
409 and the attorney general's office.
410 (9) "Judicial procurement unit" means:
411 (a) the Utah Supreme Court;
412 (b) the Utah Court of Appeals;
413 (c) the Judicial Council;
414 (d) a state judicial district; or
415 (e) each office, committee, subcommittee, or other organization within the state
416 judicial branch.
417 (10) "Legislative procurement unit" means:
418 (a) the Legislature;
419 (b) the Senate;
420 (c) the House of Representatives;
421 (d) a staff office of an entity described in Subsection (10)(a), (b), or (c); or
422 (e) each office, committee, subcommittee, or other organization within the state
423 legislative branch.
424 (11) "Local building authority" is as defined in Section 17D-2-102.
425 (12) "Local district" is as defined in Section 17B-1-102.
426 (13) "Local government procurement unit" means:
427 (a) a county or municipality, and each office or agency of the county or municipality,
428 unless the county or municipality adopts its own procurement code by ordinance;
429 (b) a county or municipality, and each office or agency of the county or municipality,
430 that has adopted this entire chapter by ordinance; or
431 (c) a county or municipality, and each office or agency of the county or municipality,
432 that has adopted a portion of this chapter by ordinance, to the extent that the term is used in the
433 adopted portion of this chapter.
434 (14) "Nonadopting local government procurement unit" means:
435 (a) a county or municipality that has not adopted Part 16, Controversies and Protests,
436 Part 17, Procurement Appeals Board, Part 18, Appeals to Court and Court Proceedings, and
437 Part 19, General Provisions Related to Protest or Appeal; and
438 (b) each office or agency of a county or municipality described in Subsection (14)(a).
439 [
440 (i) a legislative procurement unit;
441 (ii) an executive branch procurement unit;
442 (iii) a judicial procurement unit;
443 (iv) an educational procurement unit;
444 (v) a local government procurement unit;
445 (vi) a local district;
446 (vii) a special service district;
447 (viii) a local building authority;
448 (ix) a conservation district;
449 (x) a public corporation; or
450 (xi) a public transit district.
451 (b) "Procurement unit" does not include a political subdivision created under Title 11,
452 Chapter 13, Interlocal Cooperation Act.
453 [
454 [
455 of the state, including:
456 (a) a procurement unit;
457 (b) a municipality or county, regardless of whether the municipality or county has
458 adopted this chapter or any part of this chapter; and
459 (c) any other government entity located in Utah that expends public funds.
460 [
461 17B, Chapter 2a, Part 8, Public Transit District Act.
462 [
463 Section 4. Section 63G-6a-105 is amended to read:
464 63G-6a-105. Application of chapter.
465 (1) The provisions of this chapter that are enacted on May 1, 2013, apply only to a
466 procurement advertised, or begun on or after May 1, 2013, unless the parties agree to have the
467 provisions apply with respect to a procurement that was advertised or begun before May 1,
468 2013, but is not completed before May 1, 2013.
469 (2) (a) Except as provided in Section 63G-6a-107, this chapter shall apply to every
470 expenditure of public funds irrespective of the source of the funds, including federal assistance,
471 by any procurement unit, under any contract.
472 (b) The provisions of this chapter do not apply to a public entity that is not a
473 procurement unit.
474 (3) [
475 following procurement units shall adopt ordinances or resolutions relating to the procurement
476 of [
477 15, [
478 (a) an educational procurement unit;
479 (b) a conservation district;
480 (c) a local building authority;
481 (d) a local district;
482 (e) a public corporation; or
483 (f) a special service district.
484 (4) Any section of this chapter, or its implementing regulations, may be adopted by:
485 (a) a county;
486 (b) a municipality; or
487 (c) the Utah Housing Corporation.
488 (5) Rules adopted under this chapter shall be consistent with the provisions of this
489 chapter.
490 (6) An applicable rulemaking authority or a procurement unit may not adopt rules,
491 policies, or regulations that are inconsistent with this chapter.
492 (7) Unless otherwise provided by statute, this chapter does not apply to procurement of
493 real property.
494 Section 5. Section 63G-6a-106 is amended to read:
495 63G-6a-106. Procurement units with specific statutory procurement authority --
496 Independent procurement authority.
497 (1) A procurement unit with procurement authority under the following provisions has
498 independent procurement authority to the extent of the applicable provisions and for the
499 procurement items specified in the applicable provisions:
500 (a) Title 53B, State System of Higher Education;
501 (b) Title 63A, Chapter 5, State Building Board - Division of Facilities Construction
502 and Management;
503 (c) Title 67, Chapter 5, Attorney General;
504 (d) Title 72, Transportation Code; and
505 (e) Title 78A, Chapter 5, District Court.
506 (2) Except as otherwise provided in Sections 63G-6a-105 and 63G-6a-107, a
507 procurement unit shall conduct a procurement in accordance with this chapter.
508 (3) (a) The Department of Transportation may make rules governing the procurement
509 of highway construction or improvement.
510 (b) The applicable rulemaking authority for a public transit district may make rules
511 governing the procurement of a transit construction project or a transit improvement project.
512 (c) This Subsection (3) supersedes Subsections (1) and (2).
513 (4) (a) A procurement unit listed in Subsection (4)(b) may, without the supervision,
514 interference, oversight, control, or involvement of the division or the chief procurement officer,
515 but in accordance with the requirements of this chapter:
516 (i) engage in a standard procurement process;
517 (ii) procure an item under an exception, as provided in this chapter, to the requirement
518 to use a standard procurement process; or
519 (iii) otherwise engage in an act authorized or required by this chapter.
520 (b) The procurement units to which Subsection (4)(a) applies are:
521 (i) a legislative procurement unit;
522 (ii) a judicial procurement unit;
523 (iii) an educational procurement unit;
524 (iv) a local government procurement unit;
525 (v) a conservation district;
526 (vi) a local building authority;
527 (vii) a local district;
528 (viii) a public corporation;
529 (ix) a special service district;
530 (x) a public transit district; and
531 (xi) a procurement unit referred to in Subsection (1), to the extent authorized in
532 Subsection (1).
533 (c) A procurement unit with independent procurement authority shall comply with the
534 requirements of this chapter.
535 (d) Notwithstanding Subsection (4)(a), a procurement unit with independent
536 procurement authority may agree in writing with the division to extend the authority of the
537 division or the chief procurement officer to the procurement unit, as provided in the agreement.
538 (e) At any stage of the procurement process, a head of a procurement unit with
539 independent procurement authority who determines that a procurement over which the
540 procurement unit has authority is out of compliance with this chapter or applicable rules may:
541 (i) correct or amend the procurement to bring it into compliance; or
542 (ii) cancel the procurement, if the head of the procurement unit determines that it is:
543 (A) not feasible to bring the procurement into compliance; or
544 (B) in the best interest of the procurement unit to cancel the procurement.
545 (f) If, at any time during the term of a contract awarded by a procurement unit with
546 independent procurement authority, the head of the procurement unit determines that the
547 contract is out of compliance with this chapter or applicable rules, the head of the procurement
548 unit may correct or amend the contract to bring it into compliance or cancel the contract:
549 (i) if the head of the procurement unit determines that correcting, amending, or
550 canceling the contract is in the best interest of the procurement unit; and
551 (ii) after consulting with legal counsel.
552 (5) (a) The attorney general may, in accordance with the provisions of this chapter, but
553 without involvement by the division or the chief procurement officer:
554 (i) retain outside counsel; or
555 (ii) procure litigation support services, including retaining an expert witness.
556 (b) A procurement unit with independent procurement authority that is not represented
557 by the attorney general's office may, in accordance with the provisions of this chapter, but
558 without involvement by the division or the chief procurement officer:
559 (i) retain outside counsel; or
560 (ii) procure litigation support services, including retaining an expert witness.
561 (6) The state auditor's office may, in accordance with the provisions of this chapter, but
562 without involvement by the division or the chief procurement officer, procure audit services.
563 (7) The state treasurer may, in accordance with the provisions of this chapter, but
564 without involvement by the division or the chief procurement officer, procure:
565 (a) deposit [
566 (b) services related to issuing bonds.
567 Section 6. Section 63G-6a-107 is amended to read:
568 63G-6a-107. Exemptions from chapter -- Compliance with federal law.
569 (1) Except for Part 24, Unlawful Conduct and Penalties, the provisions of this chapter
570 do not apply to:
571 (a) funds administered under the Percent-for-Art Program of the Utah Percent-for-Art
572 Act;
573 (b) Ĥ→ [
573a
574
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584 (c) Ĥ→ [
585 [
586 medical equipment, obtained through a purchasing consortium by the Utah State Hospital, the
587 Utah State Developmental Center, the University of Utah Hospital, or any other hospital owned
588 by the state or a political subdivision of the state, if:
589 (i) the consortium uses a competitive procurement process; and
590 (ii) the chief administrative officer of the hospital makes a written finding that the
591 prices for purchasing medical supplies and medical equipment through the consortium are
592 competitive with market prices;
593 [
594 Fire, and State Lands, created in Section 65A-1-4, through the federal General Services
595 Administration or the National Fire Cache system;
596 [
597 [
598 Subsection 79-4-1102(1), if the division is acting under the authority described in Sections
599 79-4-1101 through 79-4-1103[
600 (h) activities related to the management of investments by a public entity granted
601 investment authority by law.
602 (2) This chapter does not prevent a procurement unit from complying with the terms
603 and conditions of any grant, gift, or bequest that is otherwise consistent with law.
604 [
605
606 [
607 procurement involves the expenditure of federal or state assistance, federal contract funds,
608 local matching funds, or federal financial participation funds, the procurement unit shall
609 comply with mandatory applicable federal or state law and regulations not reflected in this
610 chapter.
611 [
612 of construction proceeds and release of construction proceeds as provided in Section 13-8-5.
613 Section 7. Section 63G-6a-204 is amended to read:
614 63G-6a-204. Applicability of rules and regulations of Utah State Procurement
615 Policy Board and State Building Board -- Report to interim committee.
616 (1) Except as provided in Subsection (2), rules made by the board under this chapter
617 shall govern all procurement units for which the board is the applicable rulemaking authority.
618 (2) The building board rules governing procurement of construction,
619 [
620 construction, [
621 the Division of Facilities Construction and Management.
622 (3) An applicable rulemaking authority may make its own rules, consistent with this
623 chapter, governing procurement by a person over which the applicable rulemaking authority
624 has rulemaking authority.
625 (4) The board shall make a report on or before July 1 of each year to a legislative
626 interim committee, designated by the Legislative Management Committee created under
627 Section 36-12-6, on the establishment, implementation, and enforcement of the rules made
628 under Section 63G-6a-203.
629 (5) Notwithstanding Subsection 63G-3-301(13)(b), an applicable rulemaking authority
630 is required to initiate rulemaking proceedings, for rules required to be made under this chapter,
631 on or before:
632 (a) May 13, 2014, if the applicable rulemaking authority is the board; or
633 (b) January 1, 2015, for each other applicable rulemaking authority.
634 Section 8. Section 63G-6a-303 is amended to read:
635 63G-6a-303. Duties and authority of chief procurement officer.
636 (1) Except as otherwise specifically provided in this chapter, the chief procurement
637 officer serves as the central procurement officer of the state and shall:
638 (a) adopt office policies governing the internal functions of the division;
639 (b) procure or supervise each procurement over which the chief procurement officer
640 has authority;
641 (c) establish and maintain programs for the inspection, testing, and acceptance of each
642 procurement item over which the chief procurement officer has authority;
643 (d) prepare statistical data concerning each procurement and procurement usage of a
644 state procurement unit;
645 (e) ensure that:
646 (i) before approving a procurement not covered by an existing statewide contract for
647 information technology or telecommunications supplies or services, the chief information
648 officer and the agency have stated in writing to the division that the needs analysis required in
649 Section 63F-1-205 was completed, unless the procurement is approved in accordance with
650 Title 63M, Chapter 1, Part 26, Government Procurement Private Proposal Program; and
651 (ii) the oversight authority required by Subsection [
652 outside the division;
653 (f) provide training to procurement units and to persons who do business with
654 procurement units;
655 (g) if the chief procurement officer determines that a procurement over which the chief
656 procurement officer has authority is out of compliance with this chapter or board rules:
657 (i) correct or amend the procurement to bring it into compliance; or
658 (ii) cancel the procurement, if:
659 (A) it is not feasible to bring the procurement into compliance; or
660 (B) the chief procurement officer determines that it is in the best interest of the state to
661 cancel the procurement; and
662 (h) if the chief procurement officer determines that a contract over which the chief
663 procurement officer has authority is out of compliance with this chapter or board rules, correct
664 or amend the contract to bring it into compliance or cancel the contract:
665 (i) if the chief procurement officer determines that correcting, amending, or canceling
666 the contract is in the best interest of the state; and
667 (ii) after consultation with the attorney general's office.
668 (2) The chief procurement officer may:
669 (a) correct, amend, or cancel a procurement as provided in Subsection (1)(g) at any
670 stage of the procurement process; and
671 (b) correct, amend, or cancel a contract as provided in Subsection (1)(h) at any time
672 during the term of the contract.
673 Section 9. Section 63G-6a-402 is amended to read:
674 63G-6a-402. Procurement unit required to comply with Utah Procurement Code
675 and applicable rules -- Rulemaking authority -- Reporting.
676 (1) Except as otherwise provided in Section 63G-6a-107, Section 63G-6a-403, Part 8,
677 Exceptions to Procurement Requirements, or elsewhere in this chapter, a procurement unit may
678 not obtain a procurement item, unless:
679 (a) if the procurement unit is the division or a procurement unit with independent
680 procurement authority, the procurement unit:
681 (i) uses a standard procurement process or an exception to a standard procurement
682 process, described in Part 8, Exceptions to Procurement Requirements; and
683 (ii) complies with:
684 (A) the requirements of this chapter; and
685 (B) the rules made pursuant to this chapter by the applicable rulemaking authority;
686 (b) if the procurement unit is a county, a municipality, or the Utah Housing
687 Corporation, the procurement unit complies with:
688 (i) the requirements of this chapter that are adopted by the procurement unit; and
689 (ii) all other procurement requirements that the procurement unit is required to comply
690 with; or
691 (c) if the procurement unit is not a procurement unit described in Subsection (1)(a) or
692 (b), the procurement unit:
693 (i) obtains the procurement item under the direction and approval of the division,
694 unless otherwise provided by a rule made by the board;
695 (ii) uses a standard procurement process; and
696 (iii) complies with:
697 (A) the requirements of this chapter; and
698 (B) the rules made pursuant to this chapter by the applicable rulemaking authority.
699 (2) Subject to Subsection (3), the applicable rulemaking authority shall make rules
700 relating to the management and control of procurements and procurement procedures by a
701 procurement unit.
702 (3) (a) Rules made under Subsection (2) shall ensure compliance with the federal
703 contract prohibition provisions of the Sudan Accountability and Divestment Act of 2007 (Pub.
704 L. No. 110-174) that prohibit contracting with a person doing business in Sudan.
705 (b) The State Building Board rules governing procurement of construction,
706 [
707 construction, [
708 the Division of Facilities Construction and Management.
709 (4) An applicable rulemaking authority that is subject to Title 63G, Chapter 3, Utah
710 Administrative Rulemaking Act, shall make the rules described in this chapter in accordance
711 with the provisions of Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
712 (5) The State Building Board shall make a report on or before July 1 of each year to a
713 legislative interim committee, designated by the Legislative Management Committee created
714 under Section 36-12-6, on the establishment, implementation, and enforcement of the rules
715 made by the State Building Board under this chapter.
716 (6) The rules of the applicable rulemaking authority for the executive branch
717 procurement unit shall require, for each contract and request for proposals, the inclusion of a
718 clause that requires the issuing procurement unit, for the duration of the contract, to make
719 available contact information of the winning contractor to the Department of Workforce
720 Services in accordance with Section 35A-2-203. This requirement does not preclude a
721 contractor from advertising job openings in other forums throughout the state.
722 Section 10. Section 63G-6a-408 is amended to read:
723 63G-6a-408. Small purchases.
724 (1) As used in this section:
725 (a) "Annual cumulative threshold" means the maximum total annual amount,
726 established by the applicable rulemaking authority under Subsection (2)(a)(i), that a
727 procurement unit may expend to obtain procurement items from the same source under this
728 section.
729 (b) "Individual procurement threshold" means the maximum amount, established by
730 the applicable rulemaking authority under Subsection (2)(a)(ii), for which a procurement unit
731 may purchase a procurement item under this section.
732 (c) "Single procurement aggregate threshold" means the maximum total amount,
733 established by the applicable rulemaking authority under Subsection (2)(a)(iii), that a
734 procurement unit may expend to obtain multiple procurement items from one source at one
735 time under this section.
736 (2) (a) The applicable rulemaking authority may make rules governing small purchases
737 of any procurement item, including[
738 services, other professional services, information technology, and goods.
739 (b) Rules under Subsection (2)(a) may include provisions:
740 [
741 [
742 [
743 [
744 [
745 Subsection (2)[
746 [
747 (3) Expenditures made under this section by a procurement unit may not exceed a
748 threshold established by the applicable rulemaking authority, unless the chief procurement
749 officer or the head of a procurement unit with independent procurement authority gives written
750 authorization to exceed the threshold that includes the reasons for exceeding the threshold.
751 (4) Except as provided in Subsection (5), an executive branch procurement unit may
752 not obtain a procurement item through a small purchase standard procurement process if the
753 procurement item may be obtained through a state cooperative contract or a contract awarded
754 by the chief procurement officer under Subsection 63G-6a-2105(1).
755 (5) Subsection (4) does not apply if:
756 (a) the procurement item is obtained for an unanticipated, urgent or unanticipated,
757 emergency condition, including:
758 (i) an item needed to avoid stopping a public construction project;
759 (ii) an immediate repair to a facility or equipment; or
760 (iii) another emergency condition; or
761 (b) the chief procurement officer or the head of a procurement unit that is an executive
762 branch procurement unit with independent procurement authority:
763 (i) determines in writing that it is in the best interest of the procurement unit to obtain
764 an individual procurement item outside of the state contract, comparing:
765 (A) the contract terms and conditions applicable to the procurement item under the
766 state contract with the contract terms and conditions applicable to the procurement item if the
767 procurement item is obtained outside of the state contract;
768 (B) the maintenance and service applicable to the procurement item under the state
769 contract with the maintenance and service applicable to the procurement item if the
770 procurement item is obtained outside of the state contract;
771 (C) the warranties applicable to the procurement item under the state contract with the
772 warranties applicable to the procurement item if the procurement item is obtained outside of
773 the state contract;
774 (D) the quality of the procurement item under the state contract with the quality of the
775 procurement item if the procurement item is obtained outside of the state contract; and
776 (E) the cost of the procurement item under the state contract with the cost of the
777 procurement item if the procurement item is obtained outside of the state contract;
778 (ii) for a procurement item that, if defective in its manufacture, installation, or
779 performance, may result in serious physical injury, death, or substantial property damage,
780 determines in writing that the terms and conditions, relating to liability for injury, death, or
781 property damage, available from the source other than the contractor who holds the state
782 contract, are similar to, or better than, the terms and conditions available under the state
783 contract; and
784 (iii) grants an exception, in writing, to the requirement described in Subsection (4).
785 (6) Except as otherwise expressly provided in this section, a procurement unit:
786 (a) may not use the small purchase standard procurement process described in this
787 section for ongoing, continuous, and regularly scheduled procurements that exceed the annual
788 cumulative threshold; and
789 (b) shall make its ongoing, continuous, and regularly scheduled procurements that
790 exceed the annual cumulative threshold through a contract awarded through another standard
791 procurement process described in this chapter or an applicable exception to another standard
792 procurement process, described in Part 8, Exceptions to Procurement Requirements.
793 (7) This section does not prohibit regularly scheduled payments for a procurement item
794 obtained under another provision of this chapter.
795 (8) (a) It is unlawful for a person to intentionally or knowingly divide a procurement
796 into one or more smaller procurements with the intent to make a procurement:
797 (i) qualify as a small purchase, if, before dividing the procurement, it would not have
798 qualified as a small purchase; or
799 (ii) meet a threshold established by rule made by the applicable rulemaking authority,
800 if, before dividing the procurement, it would not have met the threshold.
801 (b) A person who engages in the conduct made unlawful under Subsection (8)(a) is
802 guilty of:
803 (i) a second degree felony, if the value of the procurement before being divided is
804 $1,000,000 or more;
805 (ii) a third degree felony, if the value of the procurement before being divided is
806 $250,000 or more but less than $1,000,000;
807 (iii) a class A misdemeanor, if the value of the procurement before being divided is
808 $100,000 or more but less than $250,000; or
809 (iv) a class B misdemeanor, if the value of the procurement before being divided is less
810 than $100,000.
811 (9) A division of a procurement that is prohibited under Subsection (8) includes doing
812 any of the following with the intent or knowledge described in Subsection (8):
813 (a) making two or more separate purchases;
814 (b) dividing an invoice or purchase order into two or more invoices or purchase orders;
815 or
816 (c) making smaller purchases over a period of time.
817 (10) A person who violates Subsection (8) is subject to the criminal penalties described
818 in Section 63G-6a-2405.
819 (11) The Division of Finance within the Department of Administrative Services may
820 conduct an audit of an executive branch procurement unit to verify compliance with the
821 requirements of this section.
822 (12) An executive branch procurement unit may not make a small purchase after
823 January 1, 2014, unless the chief procurement officer certifies that the person responsible for
824 procurements in the procurement unit has satisfactorily completed training on this section and
825 the rules made under this section.
826 Section 11. Section 63G-6a-609 is amended to read:
827 63G-6a-609. Multiple stage bidding process.
828 [
829
830 [
831 [
832 [
833 [
834 [
835 (a) describe the requirements for, and purpose of, each stage of the process;
836 (b) indicate whether the procurement unit intends to award:
837 (i) a single contract; or
838 (ii) multiple contracts for a series of upcoming procurements; and
839 (c) state that:
840 (i) the first stage is for prequalification only;
841 (ii) a bidder may not submit any pricing information in the first stage of the process;
842 and
843 (iii) bids in the second stage will only be accepted from a person who prequalifies in
844 the first stage.
845 [
846 (a) shall prequalify bidders to participate in subsequent stages, in accordance with
847 Section 63G-6a-403;
848 (b) shall prohibit the submission of pricing information until the final stage; and
849 (c) may, before beginning the second stage, request additional information to clarify
850 the qualifications of the bidders who submit timely responses.
851 [
852 of the invitation for bids.
853 [
854 be appropriate.
855 [
856 conducting a multiple stage bidding process under this section shall ensure compliance with
857 this part.
858 [
859 multiple stage process described in this section.
860 Section 12. Section 63G-6a-707 is amended to read:
861 63G-6a-707. Evaluation of proposals -- Evaluation committee.
862 (1) To determine which proposal provides the best value to the procurement unit, the
863 evaluation committee shall evaluate each responsive and responsible proposal that has not been
864 disqualified from consideration under the provisions of this chapter, using the criteria described
865 in the request for proposals, which may include:
866 (a) experience;
867 (b) performance ratings;
868 (c) inspection;
869 (d) testing;
870 (e) quality;
871 (f) workmanship;
872 (g) time, manner, or schedule of delivery;
873 (h) references;
874 (i) financial solvency;
875 (j) suitability for a particular purpose;
876 (k) management plans;
877 (l) cost; or
878 (m) other subjective or objective criteria specified in the request for proposals.
879 (2) Criteria not described in the request for proposals may not be used to evaluate a
880 proposal.
881 (3) The conducting procurement unit shall:
882 (a) appoint an evaluation committee consisting of at least three individuals; and
883 (b) ensure that the evaluation committee and each member of the evaluation
884 committee:
885 (i) does not have a conflict of interest with any of the offerors;
886 (ii) can fairly evaluate each proposal;
887 (iii) does not contact or communicate with an offeror concerning the procurement
888 outside the official evaluation committee process; and
889 (iv) conducts the evaluation in a manner that ensures a fair and competitive process
890 and avoids the appearance of impropriety.
891 (4) The evaluation committee may, with the approval of the head of the conducting
892 procurement unit, enter into discussions or conduct interviews with, or attend presentations by,
893 the offerors.
894 (5) (a) Except as provided in Subsections (5)(b) and (8), each member of the evaluation
895 committee is prohibited from knowing, or having access to, any information relating to the
896 cost, or the scoring of the cost, of a proposal until after the evaluation committee submits its
897 final recommended scores on all other criteria to the issuing procurement unit.
898 (b) The issuing procurement unit shall:
899 (i) if applicable, assign an individual who is not a member of the evaluation committee
900 to calculate scores for cost based on the applicable scoring formula, weighting, and other
901 scoring procedures contained in the request for proposals;
902 (ii) review the evaluation committee's scores and correct any errors, scoring
903 inconsistencies, and reported noncompliance with this chapter;
904 (iii) add the scores calculated for cost, if applicable, to the evaluation committee's final
905 recommended scores on criteria other than cost to derive the total combined score for each
906 responsive and responsible proposal; and
907 (iv) provide to the evaluation committee the total combined score calculated for each
908 responsive and responsible proposal, including any applicable cost formula, weighting, and
909 scoring procedures used to calculate the total combined scores.
910 (c) The evaluation committee may not:
911 (i) change its final recommended scores described in Subsection (5)(a) after the
912 evaluation committee has submitted those scores to the issuing procurement unit; or
913 (ii) change cost scores calculated by the issuing procurement unit.
914 (6) (a) As used in this Subsection (6), "management fee" includes only the following
915 fees of the construction manager/general contractor:
916 (i) preconstruction phase services;
917 (ii) monthly supervision fees for the construction phase; and
918 (iii) overhead and profit for the construction phase.
919 (b) When selecting a construction manager/general contractor for a construction
920 project, the evaluation committee:
921 (i) may score a construction manager/general contractor based upon criteria contained
922 in the solicitation, including qualifications, performance ratings, references, management plan,
923 certifications, and other project specific criteria described in the solicitation;
924 (ii) may, as described in the solicitation, weight and score the management fee as a
925 fixed rate or as a fixed percentage of the estimated contract value;
926 (iii) may, at any time after the opening of the responses to the request for proposals,
927 have access to, and consider, the management fee proposed by the offerors; and
928 (iv) except as provided in Subsection [
929 other information relating to the cost of construction submitted by the offerors, until after the
930 evaluation committee submits its final recommended scores on all other criteria to the issuing
931 procurement unit.
932 (7) (a) The deliberations of an evaluation committee may be held in private.
933 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
934 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
935 deliberations.
936 (8) An issuing procurement unit is not required to comply with Subsection (5) if the
937 head of the issuing procurement unit or a person designated by rule made by the applicable
938 rulemaking authority:
939 (a) signs a written statement:
940 (i) indicating that, due to the nature of the proposal or other circumstances, it is in the
941 best interest of the procurement unit to waive compliance with Subsection (5); and
942 (ii) describing the nature of the proposal and the other circumstances relied upon to
943 waive compliance with Subsection (5); and
944 (b) makes the written statement available to the public, upon request.
945 Section 13. Section 63G-6a-1203 is amended to read:
946 63G-6a-1203. Contracts -- Certain indemnification provisions forbidden.
947 [
948 [
949 [
950
951 [
952
953 [
954 under this chapter may not require that a design professional indemnify another from liability
955 claims that arise out of the design professional's services, unless the liability claim arises from
956 the design professional's negligent act, wrongful act, error or omission, or other liability
957 imposed by law.
958 [
959 [
960 may be required to indemnify a person for whom the design professional has direct or indirect
961 control or responsibility.
962 Section 14. Section 63G-6a-1206.5 is enacted to read:
963 63G-6a-1206.5. Change in contract price.
964 Ŝ→ [
965 contract price to the procurement unit.
966 (2)
967 the contract.
968 Section 15. Section 63G-6a-1501 is amended to read:
969
970 63G-6a-1501. Title.
971 This part is known as "[
972 Section 16. Section 63G-6a-1502 is amended to read:
973 63G-6a-1502. Policy regarding design professional services.
974 [
975 (1) A procurement unit seeking to procure design professional services shall:
976 (a) publicly announce all requirements for [
977 request for statement of qualifications [
978 (b) negotiate contracts for [
979 (i) on the basis of demonstrated competence and qualification for the type of services
980 required[
981 (ii) at fair and reasonable prices.
982 (2) [
983 design professional services as provided in this part, except as otherwise provided in Sections
984 63G-6a-403, 63G-6a-404, 63G-6a-408, 63G-6a-802, and 63G-6a-803.
985 (3) This part does not affect the authority of, and does not apply to procedures
986 undertaken by, a procurement unit to obtain the services of architects or engineers in the
987 capacity of employees of the procurement unit.
988 Section 17. Section 63G-6a-1502.5 is enacted to read:
989 63G-6a-1502.5. Request for statement of qualifications.
990 (1) A procurement unit may establish criteria in a request for statement of
991 qualifications by which the qualifications of a design professional, as set forth in a statement of
992 qualifications, will be evaluated, including:
993 (a) the design professional's work history and experience;
994 (b) performance ratings earned by the design professional or references for similar
995 work;
996 (c) any quality assurance or quality control plan;
997 (d) the quality of the design professional's past work product;
998 (e) the time, manner of delivery, and schedule of delivery of the design professional
999 services;
1000 (f) the design professional's financial solvency;
1001 (g) any management plan, including key personnel and subconsultants for the project;
1002 and
1003 (h) other project specific criteria that the procurement unit establishes.
1004 (2) A request for statement of qualifications may not include a request for a price or a
1005 cost component for the design professional services.
1006 Section 18. Section 63G-6a-1503 is amended to read:
1007 63G-6a-1503. Evaluation committee for design professional services.
1008 (1) In the procurement of [
1009 procurement officer or the head of an issuing procurement unit shall encourage [
1010 professionals engaged in the lawful practice of their profession to submit a statement of
1011 qualifications.
1012 (2) (a) The director of the Division of Facilities Construction and Management shall
1013 appoint an evaluation committee for [
1014 [
1015 [
1016
1017
1018 (b) A conducting procurement unit, other than the Division of Facilities Construction
1019 and Management, shall appoint an evaluation committee for design professional services
1020 procurements under the authority of that procurement unit.
1021 (3) (a) An evaluation committee appointed under Subsection (2) shall consist of at least
1022 three members.
1023 (b) A procurement unit appointing an evaluation committee under this section shall
1024 ensure that each member of the evaluation committee:
1025 (i) does not have a conflict of interest with any of the design professionals under
1026 consideration;
1027 (ii) can fairly evaluate each statement of qualifications;
1028 (iii) does not contact or communicate with any of the design professionals under
1029 consideration concerning the request for statement of qualifications outside the official
1030 evaluation committee process, beginning the date that the request for statement of
1031 qualifications is issued until the selection of the design professional has been made; and
1032 (iv) conducts the evaluation in a manner that ensures a fair and competitive process
1033 and avoids the appearance of impropriety.
1034 (4) An evaluation committee appointed under this section shall:
1035 (a) evaluate current statements of qualifications and performance data on file with the
1036 procurement unit, together with those that may be submitted by other [
1037 professionals in response to the announcement of a proposed contract;
1038 (b) consider no [
1039 (c) based upon criteria established and published by the [
1040 procurement unit, select no [
1041 considered to be the most highly qualified to provide the services required.
1042 Section 19. Section 63G-6a-1503.5 is enacted to read:
1043 63G-6a-1503.5. Evaluation of statements of qualifications.
1044 (1) An evaluation committee appointed under Section 63G-6a-1503 shall evaluate and
1045 score each responsive and responsible statement of qualifications that has not been disqualified
1046 from consideration under this chapter, using the criteria described in the request for statement
1047 of qualifications.
1048 (2) Criteria not described in the request for statement of qualifications may not be used
1049 to evaluate a statement of qualifications.
1050 (3) An evaluation committee may enter into discussions or conduct interviews with, or
1051 attend presentations by, the design professionals whose statements of qualifications are under
1052 consideration.
1053 (4) An evaluation committee shall rank the top three highest scoring design
1054 professionals, in order of their scores, for the purpose of entering into fee negotiations as
1055 provided in Section 63G-6a-1505.
1056 (5) If fewer than three design professionals submit statements of qualifications or are
1057 determined to be responsive and responsible, the chief procurement officer or head of a
1058 procurement unit with independent procurement authority shall issue a written determination
1059 explaining why it is in the best interest of the procurement unit to continue the fee negotiation
1060 and the contracting process with less than three design professionals.
1061 (6) (a) The deliberations of an evaluation committee may be held in private.
1062 (b) If the evaluation committee is a public body, as defined in Section 52-4-103, the
1063 evaluation committee shall comply with Section 52-4-205 in closing a meeting for its
1064 deliberations.
1065 Section 20. Section 63G-6a-1504 is amended to read:
1066 63G-6a-1504. Selection as part of design-build or lease.
1067 Notwithstanding any other provision of this chapter, [
1068 professional services may be procured under Title 63A, Chapter 5, State Building Board -
1069 Division of Facilities Construction and Management, as part of the services obtained in a
1070 design-build contract or as part of the services obtained in a lease contract for real property, if
1071 the qualifications of those providing the [
1072 part of the consideration in the selection process.
1073 Section 21. Section 63G-6a-1505 is amended to read:
1074 63G-6a-1505. Determination of compensation for design professional services.
1075 (1) The procurement officer shall award a contract to [
1076 professional whose statement of qualifications was awarded the highest score under Subsection
1077 63G-6a-1503(4) by the evaluation committee, at compensation that the procurement officer
1078 determines, in writing, to be fair and reasonable to the procurement unit.
1079 (2) In making the determination described in Subsection (1), the procurement officer
1080 shall take into account [
1081 [
1082 [
1083 [
1084 [
1085 (a) the estimated value, scope, and professional nature of the services; and
1086 (b) the complexity of the project or services.
1087 (3) If the procurement officer is unable to agree to a satisfactory contract with the [
1088
1089 to be fair and reasonable to the procurement unit, the procurement officer shall:
1090 (a) formally terminate discussions with that [
1091 (b) undertake discussions with [
1092 professional.
1093 (4) If the procurement officer is unable to agree to a satisfactory contract with the
1094 second [
1095 determines to be fair and reasonable to the procurement unit, the procurement officer shall:
1096 (a) formally terminate discussions with that [
1097 (b) undertake discussions with [
1098 professional.
1099 (5) If the procurement officer is unable to award a contract at a fair and reasonable
1100 price to any of the [
1101 officer shall:
1102 (a) select additional [
1103 (b) continue discussions in accordance with this part until an agreement is reached.
1104 Section 22. Section 63G-6a-1506 is amended to read:
1105 63G-6a-1506. Restrictions on procurement of design professional services.
1106 (1) Except as provided in Subsection (2), [
1107 with independent procurement authority, in accordance with Section 63G-6a-1502, [
1108
1109
1110 qualifications to procure design professional services and provides public notice of the request
1111 for statement of qualifications:
1112 (a) a [
1113 state may not submit a proposal in response to the procurement unit's [
1114
1115 (b) the procurement unit may not award a contract [
1116
1117
1118 professional services solicited in the request for statement of qualifications.
1119 (2) Subsection (1) does not apply when the procurement unit is procuring [
1120
1121 transfer.
1122 Section 23. Section 63G-6a-1603 is amended to read:
1123 63G-6a-1603. Protest officer responsibilities and authority -- Proceedings on
1124 protest -- Effect of decision.
1125 (1) After a protest is filed, the protest officer shall determine whether the protest is
1126 timely filed and complies fully with the requirements of Section 63G-6a-1602.
1127 (2) If the protest officer determines that the protest is not timely filed or that the protest
1128 does not fully comply with Section 63G-6a-1602, the protest officer shall dismiss the protest.
1129 (3) If the protest officer determines that the protest is timely filed and complies fully
1130 with Section 63G-6a-1602, the protest officer shall:
1131 (a) dismiss the protest if the protest officer determines that the protest alleges facts that,
1132 if true, do not provide an adequate basis for the protest;
1133 (b) uphold the protest without holding a hearing if the protest officer determines that
1134 the undisputed facts of the protest indicate that the protest should be upheld; or
1135 (c) hold a hearing on the protest if there is a genuine issue of material fact that needs to
1136 be resolved in order to determine whether the protest should be upheld.
1137 (4) (a) If a hearing is held on a protest, the protest officer may:
1138 (i) subpoena witnesses and compel their attendance at the protest hearing;
1139 (ii) subpoena documents for production at the protest hearing;
1140 (iii) obtain additional factual information; and
1141 (iv) obtain testimony from experts, the person filing the protest, representatives of the
1142 procurement unit, or others to assist the protest officer to make a decision on the protest.
1143 (b) The Rules of Evidence do not apply to a protest hearing.
1144 (c) The applicable rulemaking authority shall make rules relating to intervention in a
1145 protest, including designating:
1146 (i) who may intervene; and
1147 (ii) the time and manner of intervention.
1148 (d) A protest officer shall:
1149 (i) record each hearing held on a protest under this section;
1150 (ii) regardless of whether a hearing on a protest is held under this section, preserve all
1151 records and other evidence relied upon in reaching the protest officer's written decision until
1152 the decision, and any appeal of the decision, becomes final; and
1153 (iii) submit to the procurement policy board chair a copy of the protest officer's written
1154 decision and all records and other evidence relied upon in reaching the decision, within seven
1155 days after receiving:
1156 (A) notice that an appeal of the protest officer's decision has been filed under Section
1157 63G-6a-1702; or
1158 (B) a request from the chair of the procurement policy board.
1159 (e) A protest officer's holding a hearing, considering a protest, or issuing a written
1160 decision under this section does not affect a person's right to later question or challenge the
1161 protest officer's jurisdiction to hold the hearing, consider the protest, or issue the decision.
1162 (5) (a) The deliberations of a protest officer may be held in private.
1163 (b) If the protest officer is a public body, as defined in Section 52-4-103, the protest
1164 officer shall comply with Section 52-4-205 in closing a meeting for its deliberations.
1165 (6) (a) A protest officer, or the protest officer's designee, shall promptly issue a written
1166 decision regarding any protest, unless the protest is settled by mutual agreement.
1167 (b) The decision shall:
1168 (i) state the reasons for the action taken;
1169 (ii) inform the protestor of the right to judicial or administrative review as provided in
1170 this chapter; and
1171 (iii) indicate the amount of the security deposit or bond required under Section
1172 63G-6a-1703.
1173 (c) A person who issues a decision under Subsection (6)(a) shall mail, email, or
1174 otherwise immediately furnish a copy of the decision to the protestor.
1175 (7) A decision described in this section is effective until stayed or reversed on appeal,
1176 except to the extent provided in Section 63G-6a-1903.
1177 (8) (a) A decision described in Subsection (6)(a) that is issued in relation to a
1178 procurement unit other than a legislative procurement unit, a judicial procurement unit, a
1179 nonadopting local government procurement unit, or a public transit district is final and
1180 conclusive unless the protestor files an appeal under Section 63G-6a-1702.
1181 (b) A decision described in Subsection (6)(a) that is issued in relation to a legislative
1182 procurement unit, a judicial procurement unit, a nonadopting local government procurement
1183 unit, or a public transit district is final and conclusive unless the protestor files an appeal under
1184 Section 63G-6a-1802.
1185 (9) If the protest officer does not issue the written decision regarding a protest or a
1186 contract controversy within 30 calendar days after the day on which a written request for a final
1187 decision is filed with the protest officer, or within a longer period as may be agreed upon by the
1188 parties, the protester, prospective contractor, or contractor may proceed as if an adverse
1189 decision had been received.
1190 (10) A determination under this section by the protest officer regarding an issue of fact
1191 may not be overturned on appeal unless the decision is arbitrary and capricious or clearly
1192 erroneous.
1193 Section 24. Section 63G-6a-1702 is amended to read:
1194 63G-6a-1702. Appeal to Utah State Procurement Policy Board -- Appointment of
1195 procurement appeals panel -- Proceedings.
1196 (1) This part applies to all procurement units other than:
1197 (a) a legislative procurement unit;
1198 (b) a judicial procurement unit;
1199 (c) a nonadopting local government procurement unit; or
1200 (d) a public transit district.
1201 (2) (a) Subject to Section 63G-6a-1703, a party to a protest involving a procurement
1202 unit other than a procurement unit listed in Subsection (1)(a), (b), (c), or (d) may appeal the
1203 protest decision to the board by filing a written notice of appeal with the chair of the board
1204 within seven days after:
1205 (i) the day on which the written decision described in Section 63G-6a-1603 is:
1206 (A) personally served on the party or the party's representative; or
1207 (B) emailed or mailed to the address or email address of record provided by the party
1208 under Subsection 63G-6a-1602[
1209 (ii) the day on which the 30-day period described in Subsection 63G-6a-1603(7) ends,
1210 if a written decision is not issued before the end of the 30-day period.
1211 (b) A person appealing a debarment or suspension of a procurement unit other than a
1212 procurement unit listed in Subsection (1)(a), (b), (c), or (d) shall file a written notice of appeal
1213 with the chair of the board no later than seven days after the debarment or suspension.
1214 (c) A notice of appeal under Subsection (2)(a) or (b) shall:
1215 (i) include the address of record and email address of record of the party filing the
1216 notice of appeal; and
1217 (ii) be accompanied by a copy of any written protest decision or debarment or
1218 suspension order.
1219 (3) A person may not base an appeal of a protest under this section on a ground not
1220 specified in the person's protest under Section 63G-6a-1602.
1221 (4) A person may not appeal from a protest described in Section 63G-6a-1602, unless:
1222 (a) a decision on the protest has been issued; or
1223 (b) a decision is not issued and the 30-day period described in Subsection
1224 63G-6a-1603(7), or a longer period agreed to by the parties, has passed.
1225 (5) The chair of the board or a designee of the chair who is not employed by the
1226 procurement unit responsible for the solicitation, contract award, or other action complained of:
1227 (a) shall, within seven days after the day on which the chair receives a timely written
1228 notice of appeal under Subsection (2), and if all the requirements of Subsection (2) and Section
1229 63G-6a-1703 have been met, appoint:
1230 (i) a procurement appeals panel to hear and decide the appeal, consisting of at least
1231 three individuals, each of whom is:
1232 (A) a member of the board; or
1233 (B) a designee of a member appointed under Subsection [
1234 designee is approved by the chair; and
1235 (ii) one of the members of the procurement appeals panel to be the chair of the panel;
1236 (b) may:
1237 (i) appoint the same procurement appeals panel to hear more than one appeal; or
1238 (ii) appoint a separate procurement appeals panel for each appeal;
1239 (c) may not appoint a person to a procurement appeals panel if the person is employed
1240 by the procurement unit responsible for the solicitation, contract award, or other action
1241 complained of; and
1242 (d) shall, at the time the procurement appeals panel is appointed, provide appeals panel
1243 members with a copy of the protest officer's written decision and all other records and other
1244 evidence that the protest officer relied on in reaching the decision.
1245 (6) A procurement appeals panel described in Subsection (5) shall:
1246 (a) consist of an odd number of members;
1247 (b) conduct an informal proceeding on the appeal within 60 days after the day on which
1248 the procurement appeals panel is appointed:
1249 (i) unless all parties stipulate to a later date; and
1250 (ii) subject to Subsection (8);
1251 (c) at least seven days before the proceeding, mail, email, or hand-deliver a written
1252 notice of the proceeding to the parties to the appeal; and
1253 (d) within seven days after the day on which the proceeding ends:
1254 (i) issue a written decision on the appeal; and
1255 (ii) mail, email, or hand-deliver the written decision on the appeal to the parties to the
1256 appeal and to the protest officer.
1257 (7) (a) The deliberations of a procurement appeals panel may be held in private.
1258 (b) If the procurement appeals panel is a public body, as defined in Section 52-4-103,
1259 the procurement appeals panel shall comply with Section 52-4-205 in closing a meeting for its
1260 deliberations.
1261 (8) A procurement appeals panel may continue a procurement appeals proceeding
1262 beyond the 60-day period described in Subsection (6)(b) if the procurement appeals panel
1263 determines that the continuance is in the interests of justice.
1264 (9) A procurement appeals panel:
1265 (a) shall, subject to Subsection (9)(c), consider the appeal based solely on:
1266 (i) the protest decision;
1267 (ii) the record considered by the person who issued the protest decision; and
1268 (iii) if a protest hearing was held, the record of the protest hearing;
1269 (b) may not take additional evidence;
1270 (c) notwithstanding Subsection (9)(b), may, during an informal hearing, ask questions
1271 and receive responses regarding the appeal, the protest decision, or the record in order to assist
1272 the panel to understand the appeal, the protest decision, and the record; and
1273 (d) shall uphold the decision of the protest officer, unless the decision is arbitrary and
1274 capricious or clearly erroneous.
1275 (10) If a procurement appeals panel determines that the decision of the protest officer is
1276 arbitrary and capricious or clearly erroneous, the procurement appeals panel:
1277 (a) shall remand the matter to the protest officer, to cure the problem or render a new
1278 decision;
1279 (b) may recommend action that the protest officer should take; and
1280 (c) may not order that:
1281 (i) a contract be awarded to a certain person;
1282 (ii) a contract or solicitation be cancelled; or
1283 (iii) any other action be taken other than the action described in Subsection (10)(a).
1284 (11) The board shall make rules relating to the conduct of an appeals proceeding,
1285 including rules that provide for:
1286 (a) expedited proceedings; and
1287 (b) electronic participation in the proceedings by panel members and participants.
1288 (12) The Rules of Evidence do not apply to an appeals proceeding.
1289 Section 25. Section 63G-6a-1703 is amended to read:
1290 63G-6a-1703. Requirement to pay a security deposit or post a bond -- Exceptions
1291 -- Amount -- Forfeiture of security deposit or bond.
1292 (1) Except as provided by rule made under Subsection (2)(a), a person who files a
1293 notice of appeal under Section 63G-6a-1702 shall, before the expiration of the time provided
1294 under Subsection 63G-6a-1702(2) for filing a notice of appeal, pay a security deposit or post a
1295 bond with the office of the protest officer.
1296 (2) The amount of a security deposit or bond required under Subsection (1) is:
1297 (a) for an appeal relating to an invitation for bids or request for proposals and except as
1298 provided in Subsection (2)(b)(ii):
1299 (i) $20,000, if the total contract value is under $500,000;
1300 (ii) $25,000, if the total contract value is $500,000 or more but less than $1,000,000;
1301 (iii) $50,000, if the total contract value is $1,000,000 or more but less than $2,000,000;
1302 (iv) $95,000, if the total contract value is $2,000,000 or more but less than $4,000,000;
1303 (v) $180,000, if the total contract value is $4,000,000 or more but less than $8,000,000;
1304 (vi) $320,000, if the total contract value is $8,000,000 or more but less than
1305 $16,000,000;
1306 (vii) $600,000, if the total contract value is $16,000,000 or more but less than
1307 $32,000,000;
1308 (viii) $1,100,000, if the total contract value is $32,000,000 or more but less than
1309 $64,000,000;
1310 (ix) $1,900,000, if the total contract value is $64,000,000 or more but less than
1311 $128,000,000;
1312 (x) $3,500,000, if the total contract value is $128,000,000 or more but less than
1313 $256,000,000;
1314 (xi) $6,400,000, if the total contract value is $256,000,000 or more but less than
1315 $512,000,000; and
1316 (xii) $10,200,000, if the total contract value is $512,000,000 or more; or
1317 (b) $20,000, for an appeal:
1318 (i) relating to any type of procurement process other than an invitation for bids or
1319 request for proposals;
1320 (ii) relating to an invitation for bids or request for proposals, if the estimated total
1321 contract value cannot be determined; or
1322 (iii) of a debarment or suspension.
1323 (3) (a) For an appeal relating to an invitation for bids, the estimated total contract value
1324 shall be based on:
1325 (i) the lowest responsible and responsive bid amount for the entire term of the contract,
1326 excluding any renewal period, if the bid opening has occurred;
1327 (ii) the total budget for the procurement item for the entire term of the contract,
1328 excluding any renewal period, if bids are based on unit or rate pricing; or
1329 (iii) if the contract is being rebid, the historical usage and amount spent on the contract
1330 over the life of the contract.
1331 (b) For an appeal relating to a request for proposals, the estimated total contract value
1332 shall be based on:
1333 (i) the lowest cost proposed in a response to a request for proposals, considering the
1334 entire term of the contract, excluding any renewal period, if the opening of proposals has
1335 occurred;
1336 (ii) the total budget for the procurement item over the entire term of the contract,
1337 excluding any renewal period, if opened cost proposals are based on unit or rate pricing; or
1338 (iii) if the contract is being reissued, the historical usage and amount spent on the
1339 contract over the life of the contract that is being reissued.
1340 (4) The protest officer shall:
1341 (a) retain the security deposit or bond until the protest and any appeal of the protest
1342 decision is final;
1343 (b) as it relates to a security deposit:
1344 (i) deposit the security deposit into an interest-bearing account; and
1345 (ii) after any appeal of the protest decision becomes final, return the security deposit
1346 and the interest it accrues to the person who paid the security deposit, unless the security
1347 deposit is forfeited to the [
1348 Subsection (5); and
1349 (c) as it relates to a bond:
1350 (i) retain the bond until the protest and any appeal of the protest decision becomes
1351 final; and
1352 (ii) after the protest and any appeal of the protest decision becomes final, return the
1353 bond to the person who posted the bond, unless the bond is forfeited to the [
1354 general fund of the procurement unit under Subsection (5).
1355 (5) A security deposit that is paid, or a bond that is posted, under this section shall
1356 forfeit to the [
1357 (a) the person who paid the security deposit or posted the bond fails to ultimately
1358 prevail on appeal; and
1359 (b) the procurement appeals panel finds that the protest or appeal is frivolous or that its
1360 primary purpose is to harass or cause a delay.
1361 Section 26. Section 63G-6a-1802 is amended to read:
1362 63G-6a-1802. Appeal to Utah Court of Appeals.
1363 (1) (a) As provided in this part:
1364 (i) a person may appeal a dismissal of an appeal by the board chair under Subsection
1365 63G-6a-1706(1);
1366 (ii) a person who receives an adverse decision by a procurement appeals panel may
1367 appeal that decision;
1368 (iii) subject to Subsection (2), a procurement unit, other than a legislative procurement
1369 unit, a judicial procurement unit, a nonadopting local government procurement unit, or a public
1370 transit district, may appeal an adverse decision by a procurement appeals panel;
1371 (iv) a person who receives an adverse decision in a protest relating to a legislative
1372 procurement unit, a judicial procurement unit, a nonadopting local government procurement
1373 unit, or a public transit district may appeal that decision; and
1374 (v) a person who is debarred or suspended under Section 63G-6a-904 by a legislative
1375 procurement unit, a judicial procurement unit, a nonadopting local government procurement
1376 unit, or a public transit district may appeal the debarment or suspension.
1377 (b) A person seeking to appeal a dismissal, decision, or debarment or suspension under
1378 Subsection (1)(a) shall file a notice of appeal with the Utah Court of Appeals within seven days
1379 after the dismissal, decision, or debarment or suspension.
1380 (2) A procurement unit may not appeal the decision of a procurement appeals panel,
1381 unless the appeal is:
1382 (a) recommended by the protest officer involved; and
1383 (b) except for a procurement unit that is not represented by the attorney general's
1384 office, approved by the attorney general.
1385 (3) A person appealing a dismissal, decision, protest, debarment, or suspension under
1386 this section may not base the appeal on a ground not specified in the proceeding from which
1387 the appeal is taken.
1388 (4) The Utah Court of Appeals:
1389 (a) shall consider the appeal as an appellate court;
1390 (b) may not hear the matter as a trial de novo; and
1391 (c) may not overturn a finding, dismissal, decision, or debarment or suspension, unless
1392 the finding, dismissal, decision, or debarment or suspension is arbitrary and capricious or
1393 clearly erroneous.
1394 (5) The Utah Court of Appeals is encouraged to:
1395 (a) give an appeal made under this section priority; and
1396 (b) consider the appeal and render a decision in an expeditious manner.
1397 Section 27. Section 63G-6a-1903 is amended to read:
1398 63G-6a-1903. Effect of timely protest or appeal.
1399 A procurement unit, other than a legislative procurement unit, a judicial procurement
1400 unit, a nonadopting local government procurement unit, or a public transit district, may not
1401 proceed further with a solicitation or with the award of a contract:
1402 (1) during the pendency of a timely:
1403 (a) protest under Subsection 63G-6a-1602(1);
1404 (b) appeal of a protest under Section 63G-6a-1702; or
1405 (c) appeal of a procurement appeals panel decision under Section 63G-6a-1802; and
1406 (2) until:
1407 (a) all administrative and judicial remedies are exhausted;
1408 (b) for a protest under Section 63G-6a-1602 or an appeal under Section 63G-6a-1702:
1409 (i) the chief procurement officer, after consultation with the attorney general's office
1410 and the head of the using agency, makes a written determination that award of the contract
1411 without delay is in the best interest of the procurement unit or the state;
1412 (ii) the head of a procurement unit with independent procurement authority, after
1413 consultation with the procurement unit's attorney, makes a written determination that award of
1414 the contract without delay is in the best interest of the procurement unit or the state; or
1415 (iii) for a procurement unit that is not represented by the attorney general's office, the
1416 procurement unit, after consulting with the attorney for the procurement unit, makes a written
1417 determination that award of the contract without delay is in the best interest of the procurement
1418 unit or the state; or
1419 (c) for an appeal under Section 63G-6a-1802, or an appeal to a higher court than
1420 district court:
1421 (i) the chief procurement officer, after consultation with the attorney general's office
1422 and the head of the using agency, makes a written determination that award of the contract
1423 without delay is in the best interest of the procurement unit or the state;
1424 (ii) the head of a procurement unit with independent procurement authority, after
1425 consultation with the procurement unit's attorney, makes a written determination that award of
1426 the contract without delay is in the best interest of the procurement unit or the state; or
1427 (iii) for a procurement unit that is not represented by the attorney general's office, the
1428 procurement unit, after consulting with the attorney for the procurement unit, makes a written
1429 determination that award of the contract without delay is necessary to protect the best interest
1430 of the procurement unit or the state.
1431 Section 28. Section 63G-6a-1904 is amended to read:
1432 63G-6a-1904. Costs to or against protestor.
1433 (1) [
1434 review and the protesting bidder or offeror should have been awarded the contract under the
1435 solicitation but is not, the protestor [
1436 against the procurement unit:
1437 (a) the reasonable costs incurred in connection with the solicitation, including bid
1438 preparation and appeal costs; and
1439 (b) any equitable relief determined to be appropriate by the reviewing administrative or
1440 judicial body.
1441 (2) [
1442 appeals panel or other appellate body does not sustain the protest, the protestor shall reimburse
1443 the conducting or issuing procurement unit for all expenses that the conducting or issuing
1444 procurement unit incurred in defending the appeal, including personnel costs, attorney fees,
1445 other legal costs, [
1446 expenses paid by the conducting or issuing procurement unit to witnesses or appeals panel
1447 members, and any additional expenses incurred by the staff of the conducting or issuing
1448 procurement unit who have provided materials and administrative services to the procurement
1449 appeals panel for that case.
1450 (3) The provisions of Title 63G, Chapter 7, Part 4, Notice of Claim Against a
1451 Governmental Entity or a Government Employee, and Section 63G-7-601 do not apply to
1452 actions brought under this chapter by an aggrieved party for equitable relief or reasonable costs
1453 incurred in preparing or appealing an unsuccessful bid or offer.